It’s bloggers versus big business in a California courtroom on Thursday
as the Electronic Freedom Foundation faces off against Apple Computer in a
case that could impact the rights of online and offline journalists to
shield their sources.
The EFF is appealing an earlier court ruling stating that
journalists/bloggers may not be able to protect the identities of sources
who leak business trade secrets.
“This is one of the bellwether cases that could define first amendment
rights for bloggers,” said David Hudson, a research attorney at the First
Amendment Center, a Nashville, Tenn.-based institute that promotes awareness
of First Amendment issues.
“And if the court doesn’t properly calibrate the balance between
protection for those who allege defamation and those who report and write
about public issues, it could be a drastic blow against press freedom.”
The saga began with a lawsuit filed by Apple in December 2004 in Santa
Clara County, Calif., against 20 unnamed and presumably unknown individuals,
referred to in the court filing as “Does.”
One or more of the “Does” allegedly e-mailed information about an Apple
product under development to several Web publications, including
AppleInsider and PowerPage.
According to Apple’s court filings, the stories that ran on AppleInsider
and PowerPage included verbatim extracts from Apple’s in-house development
documentation, as well as confidential pricing projections and marketing
analysis.
Apple claims that the only people with access to such information would
have signed a nondisclosure agreement prohibiting them from sharing the
information with anyone outside of a select group of Apple employees.
To find out who the “Does” are, Apple subpoenaed Nfox.com, the e-mail
service provider for Jason O’Grady, the publisher of PowerPage. Apple wanted
access to PowerPage’s stored e-mail messages.
Apple says that since the e-mails in question contain the company’s
intellectual property, it has a right to view the e-mails. And in a ruling on
March 11, Judge James Kleinberg of the Santa Clara County Superior Court agreed
with Apple.
“I think Apple is entitled to enforce the ownership of its trade secrets,
and that includes trying to identify the sources of leaks involving its
intellectual property,” said Bruce Sunstein, an intellectual property lawyer
based in Boston.
“However there’s always a question of whether it’s wise to do so. This
case strikes me as a heavy-handed set of remedies in this context.”
Intel filed a court
brief in support of Apple, noting that “trade secret law is an ancient
doctrine — thousands of year ago Roman law punished those who induced an
employee to divulge secrets relating to his or her master’s business
affairs.”
Intel asked the court to rule that Apple’s need to know in this case
overrides the right of journalists to protect their sources.
The key argument is that the public isn’t served by knowing about Apple’s
in-development products. Therefore, the protection of sources disclosing
such information should be far less stringent than, say, cases involving
whistle-blowers.
O’Grady’s attorneys have argued that California law prevents Apple from
forcing a journalist to disclose his sources unless there is no other way to
discover their identities.
Given that Apple named only 20 “Does” in its filing, the EFF has argued
that the company should be able to determine on its own who released the
information in question to the Web sites.
For its part, Apple has argued in court filings that the company has
exhausted all other options of discovering the leakers’ identities.
But some say the company would have found another way to determine their
identities if they’d leaked the product information to the mainstream media.
“If the New York Times published this material, Apple wouldn’t even dream
of suing them. The only reason they’re going after this guy is because they
think they can get away with it,” said Robert Cox, president of the Media
Bloggers Association.
Apple, which did not return calls or e-mails requesting comment for this
story, has said in its filings that the company’s argument is with the
sources that violated their nondisclosure agreements, not the journalists
who wrote the stories.
But some feel that if the court rules in favor of Apple a precedent could
be set that lets companies threaten journalists and whistleblowers.
Dan Gillmor, who works with the Center for Citizen Media, a joint project
with Harvard University’s Berkman Center for Internet and Society and the
University of California at Berkeley’s Graduate School of Journalism, said
that the mainstream media haven’t paid nearly enough attention to this case.
“The traditional media folks basically ignored it when only websites were
being threatened,” said Gillmor. “The media organizations only jumped in
when they realized they too might be affected — even though this case has
always been about a wider freedom of speech.”
He added, “The circuit judge essentially ducked the question of whether
these folks were doing journalism. But if his ruling is upheld it will be a
huge barrier to business journalism in general.”
